With deference I dissent from the majority opinion. In so doing I am well aware that the State may by statute regulate and even prohibit horse racing under its broad and inherent police power; that horse racing ex necessitate is apt to lend itself to fraud on the public and therefore it is a fit subject for state regulation; and I agree with the majority opinion that Chapter 71, Acts of the Legislature, 1935, creating the West Virginia Racing Commission and delegating to the Commission "the full power to prescribe rules, regulations and conditions under which all races shall be conducted within the state of West Virginia" is constitutional and within the scope of the State's police power. Nevertheless, I dissent from the majority opinion.
In the first place, Rule No. 248 as applied by the commission and approved by this Court in the majority
opinion and in the syllabus thereto, is inconsistent with the inhibitory provisions of Rule No. 245. Rule No. 248 simply provides the effect which the presence of deleterious drugs found in the saliva or urine of a horse shall have on the question of the revocation of the trainer's license. But Rules Nos. 245 and 247-A (a) alone provide the conditions under which and the extent to which narcotics, stimulants or other drugs may not be administered to a horse. Rule No. 245 specifically provides that "No narcotic, stimulant or drug shall be used * * * for the purpose of stimulating the horse or affecting hisspeed in a race." (Italics supplied.) Rule No. 247-A (a) provides that any trainer who, without notice to the track authorities, administers or permits to be administered to any horse any drugs or medicines of any kind whatsoever within forty-eight hours prior to the running of a horse race may be suspended or his license revoked.
The record made at the hearing before the commission contains no evidence that "atropine, hyosciamine or hyoscine, and possibly procaine, or some other drug" claimed by the commission to have been injected in the horse, Sunset Boy, was so injected "for the purpose of stimulating the horse or affecting his speed in the race." The record discloses that the drugs found in the horse's urine as a result of a chemical analysis were depressants. Dr. William E. Trussell, track veterinarian of the Charles Town Track, a witness for the commission, and Dr. William R. Humphrey, who had been associated with his father, an experienced veterinarian, called by the relator so testified. Dr. Humphrey testified:
"Q. What effect would the three medicines referred to, or either of them [atropine, hyoscyamine and hyoscine], have upon a horse's ability to run?
"A. In the therapeutic dose, I think it would slow him down.
* * *
"Q. How would it slow the horse down Doctor?
"A. Well, it would dry up the saliva and make his respiration to the horse feel sort of hard and dry.
"Q. Are either one of these medicines classified as a stimulant?
"A. They are depressants, all three of them.
"Q. Not stimulants?
"A. Sedatives or depressants, whatever you want to call them."
But notwithstanding this evidence, the horse, Sunset Boy, led the field in the race immediately before the urine sample was obtained. In the light of this evidence it is quite difficult to say that the drugs in question were used "for the purpose of stimulating the horse or affecting his speed in the race." Moreover, Rule No. 247-A (a) seems to prohibit the injection or use of drugs by a trainer, and the relator is a trainer, within forty-eight hours of the race in which the horse is to run without notice to those in authority. Subsection (a) of Rule No. 247-A reads: "Any trainer who injects, gives, uses or administers any drugs or medicines of any kind whatsoever, or who authorizes, allows or permits any other person to give, inject or administer any drugs of any kind whatsoever to a horse within forty-eight (48) hours prior to the running of a horse race, must give notice of the use, injection or administering of said drugs or medicines prior to the running of said race. Any trainer failing to give such notice may be suspended or his license revoked."; and there is no evidence in this record bearing on the question when or by whom the drugs, found in the urine of the horse, were administered. Nevertheless, the commission suspended the relator's license for a period of six months which, in my opinion, is a revocation pro tanto and served to disqualify her, as well as her horses, in this and several other states,
including the State of New Jersey, where this record discloses she maintains at great expense a training stable for the purpose of training not only her own horses but the horses belonging to other owners. In my opinion, the order of the commission in disqualifying the relator and her horses was arbitrary, unwarranted and capricious, and in contravention of the very rules framed and promulgated by the commission for the purpose of regulating horse racing in West Virginia.
But the commission evidently contends in this proceeding, and its contention is sustained by the majority opinion, that under Rule No. 248 it is unnecessary to prove: (1) That the drugs found in the urine of the horse Sunset Boy were injected into the horse for the purpose of stimulating the horse or affecting his speed in a race; and (2) the drugs were injected without notice to the track authorities within forty-eight hours of the race. It is asserted by the commission and in the majority opinion that Rule No. 248 imposes upon the trainer the absolute responsibility for the condition of the horse or horses under his charge as such trainer, except in cases of unavoidable absence, and that the mere showing of evidence of the administration of drugs will subject such trainer to suspension for not less than six months. Rule No. 248 was framed and promulgated by the commission, as the majority indicates, under the police power of the State. While relator's license is not a property right, it is, in my opinion, a valuable privilege though conditional in its nature that cannot be taken away, notwithstanding the broad police powers residing in the State without just cause. Whether this rule provides that the mere presence of drugs in the system of a horse imposes absolute liability on the trainer or creates a conclusive presumption establishing liability, the legal result is the same. In either event the relator is precluded from establishing a just defense. The rule, as applied by the commission and approved in the majority opinion is, in my judgment, violative of the Fourteenth Amendment of the Constitution of the United States, and Article III, Section 10, of the Constitution
of West Virginia. Said Section 10 of the West Virginia Constitution provides: "No person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers." I am well aware, as held in State v.Bunner, 126 W. Va. 280, 27 S.E.2d 823, that the police powers of the State did not originate in the Constitution, and that such powers properly exercised constitute due process.City of Chicago v. Sturges, 222 U.S. 313, 322, 32 S.Ct. 92,56 L.Ed. 215. In the latter case the Supreme Court of the United States said: "If such legislation be reasonably adapted to the end in view, affords a hearing before judgment, and is not forbidden by some other affirmative provision of constitutional law, it is not to be regarded as denying due process of law under the provisions of the Fourteenth Amendment." (Italics supplied.) The police power is an incident of government itself, and the very breath of this inherent power, where delegated to an administrative body, should, in the interest of good government, preclude its exercise in an unbridled and haphazard manner. The gradual sapping of judicial and legislative power by administrative boards, attempting to and exercising arbitrary power serves to undermine the very Constitution itself. There is, of course, a prevailing distinction in cases in which the State has the absolute right to prohibit and those in which the business or profession is considered "legitimate". In the former a summary revocation of a license in the exercise of sound discretion ordinarily is due process; while in the latter notice and hearing are necessary to meet the constitutional standards of due process. Vol. XIV Columbia Law Review, 67, 68, 69. In the instant case relator filed a protest with the commission, and under Rule No. 74 was entitled to a hearing before the commission, as well as a hearing under Rule No. 245, before the announcement of the penalty of suspension imposed by the stewards; and a hearing, where required, imports a full and fair hearing upon sufficient and proper notice. In Merrit v. Swope, 46 N.Y. So.2d 944, in which the Court set aside the denial of a jockey's license on the ground that the jockey had
not been given a fair hearing, Mr. Justice Untermeyer said: "A `hearing' must be fair in all respects and not a mere form to precede a predetermined result."
In my opinion, Rule No. 248 provides that the mere presence of drugs in the saliva or urine of a horse creates a conclusive presumption that drugs were administered (1) "for the purpose of stimulating the horse or affecting his speed in a race"; and (2) that the administration was within forty-eight hours of the race; and such presumption serves, as it did in the instant case, to preclude the consideration of evidence on the two salient questions above mentioned. In Nulter v. State RoadCommission of West Virginia, 119 W. Va. 312, 193 S.E. 549,194 S.E. 270, this Court, while holding the imperative necessity of the existence of police power, precludes any limitation upon it, it must not be arbitrarily exercised, citing Hadacheck v.Sebastian, 239 U.S. 394, 36 S.Ct. 143, 145, 60 L.Ed. 348. In that case this Court said that the "Lawful administrative process is due process equally as much as lawful judicial process. Notice and hearing — `a day in court' — are matters of right in judicial proceedings; but not so, necessarily, in administrative proceedings, which from their very character may not require such procedure, or from `imperative necessity' cannot await it." But in the Nulter case, involving the revocation of an automobile license under the Financial Responsibility Act (Acts of the West Virginia Legislature, 1935, Chapter 61, Section 3), the licensee was necessarily afforded a hearing in the rendition of the judgment, upon which the revocation was based, of "a court of competent jurisdiction within the United States * * *." In Heiner, Collector ofInternal Revenue v. Donnan, 285 U.S. 312, 76 L.Ed. 772,52 S.Ct. 358, the Supreme Court of the United States held unconstitutional pro tanto an Act of Congress providing that a gift made within two years of death shall be conclusively presumed to have been made in contemplation of death. In that case the mere showing that a gift was made within two years prior to the death of the donor precluded the
defense that it was not made in contemplation of death. In the instant case the mere presence of a drug in relator's horse, Sunset Boy, made it unnecessary for the commission under the holding of the majority opinion to prove that the drug was administered (1) For the purpose of stimulating the horse or affecting his speed in a race; and (2) that the drug was administered without notice to the track authorities within forty-eight hours prior to the race in which the horse was to be run.
State ex rel. Paoli v. Baldwin, 159 Fla. 165,31 So.2d 627, construed a rule of the State Racing Commission of Florida inhibiting the administration by any person or permitting the administration to any horse entered or to be entered in a race of "any stimulant, depressant, hypnotic or narcotic drug, of any kind or description, prior to a race or work-out"; and providing further that "The trainer shall be the absolute insurer of and responsible for the condition of the horses entered in a race, regardless of the acts of a third party." In that case the Florida Court held that mere proof that a drug had been administered to a horse in violation of the rule was "irrebuttable evidence" that the trainer had violated the rule; and a revocation based upon such evidence alone was a denial of due process of law. In Mahoney v. Byers, 187 Md. 81,48 A.2d 600, the Court held that a rule of the Maryland Racing Commission, which provided that "The fact that an analysis shows the presence of a drug shall be conclusive evidence either that there was knowledge of the fact on the part of the trainer or he was guilty of carelessness in permitting it to be administered." was a denial of due process. In that case the Maryland Court said: "The Commission, therefore, cannot set up in a rule an irrebuttable presumption and treat it as if it were a prima facie presumption. If this were not so the Commission could justify its action under such rule by simply saying they applied the rule as if it were a prima facie presumption. This it cannot do. It is sufficient to say that the comments of the Chairman of the Commission, made during the course of the hearing before it, and its final order,
show that the irrebuttable presumption set up in the rule was applied in this case." In the Mahoney case the Court further said: "The Commission is a creature of the Legislature and the Legislature does not possess the power under the State Constitution to prevent one from making a defense to a charge brought against him by substituting an irrebuttable presumption for facts. Such a law would be arbitrary, illegal, capricious and hence unconstitutional. That the trial of facts, where they arise, is one of the greatest securities of the lives, liberties and estate of the People. * * * This rule prevents the trial of facts and calls for the revocation of a license without cause shown." In the instant case the comments of the chairman of the commission made at the hearing, and as disclosed by the record before us, show that the commission applied the irrebuttable presumption rule in the revocation of relator's license.
This Court in writing the majority opinion seems to rely solely upon the case of Sandstrom v. California Racing Board,31 Cal.2d 401, 189 P.2d 17. This case is cited in the majority opinion as being exactly in point with the instant case. That case involved a rule of the California Racing Board which, like Rule No. 248, was evidently designed to impose strict responsibility upon the trainer for the condition of the horse. The California rule does not provide, as the rules promulgated and framed by the West Virginia Racing Commission that, in order to justify suspension or revocation of a trainer's license, the drugs must be administered (1) For the purpose of stimulating the horse or affecting his speed in a race; and (2) that the administration occurred without notice to the track authorities within forty-eight hours prior to the running of the horse. The Sandstrom case clearly is not in point. I do not think that an administrative body, though having almost plenary powers delegated to it by legislative fiat, can, as the West Virginia Racing Commission has done, establish rules governing the revocation of a trainer's license and in actual practice ignore those rules.
But the Sandstrom case did not involve the constitutionality of a California statute. As shown by the majority opinion in that case, the Act of the Legislature of California, under scrutiny there, was adopted by the electorate and incorporated in Section 25a, Article IV of the California Constitution. The provisions of the California Act were part and parcel of the California Constitution itself. If such a thing is possible, the California Court was called upon to pass on the constitutionality of its own Constitution. I think the Sandstrom case clearly, as above indicated, is not in point with the instant case; and if it were, I agree with the able dissent of Mr. Justice Carter, in which he said: "Certainly there can be no difference in legal effect between absolute liability and a conclusive presumption of liability."
Though I would award the writ for the foregoing reasons, there is a preliminary question which I am taking the liberty to discuss last, which was not considered in the majority opinion, but which, in my opinion, would alone justify the awarding of the writ. As heretofore indicated Rule No. 248 promulgated by the commission, and certainly the commission is bound by its rules, requires that a licensee shall be given a hearing "before any announcement is made of any penalty imposed"; yet the stewards imposed on the relator and her horse, Sunset Boy, the penalty of a six months suspension before any hearing of any kind was had. Moreover, a hearing, in my opinion, presupposes a proper notice of hearing. In re Securities and ExchangeCommission, 84 F.2d 316, (C.C.A. Second Circuit), citingState ex rel. Hughes v. Milhollon, 50 N.D. 184, 195 N.W. 292,295 and Securities Exchange Commission v. Torr (D.C.S.D. N.Y.)15 F. Supp. 144, it was held that a hearing as distinguished from an investigation "presupposes a formal proceeding upon notice with adversary parties, and with issues on which evidence may be adduced by both parties and in which all have a right to be heard." In the instant case the only notice of hearing which relator had was notice of the ruling of the stewards which reads: "May 2, 1949. Upon receipt of the report
from the chemist employed by the West Virginia Racing Commission that the sample of urine taken from the horse Sunset Boy, winner of the first race on April 23, 1949, showed a positivereaction, trainer, Elsie S. Morris, and the horse Sunset Boy are suspended for six (6) months from April 30, 1949. The case is referred to the West Virginia Commission." (Italics supplied.) Such notice, if it may be called a notice, not only preceded the announcement of the penalty imposed by the stewards, contrary to Rule No. 74, but it did not inform the relator (1) what drugs were administered; (2) their nature and effect; (3) whether they were administered for the purpose of stimulating the horse or affecting his speed in the race; and (4) whether they were administered without notice to the track authorities within forty-eight hours prior to the race in which the horse was run. Such belated notice, even if it had been timely, in my opinion, was insufficient in that it did not meet the requirements of a notice which should precede every hearing. How, may I inquire, could relator under such notice have prepared for her defense at the hearing? Evidently the commission gave no proper notice, because, as indicated by this record, the commission erroneously entertained the belief that the foregoing specified matters were not required to be proved as a conclusive presumption arose from the mere showing of the presence of the drugs, which precluded the necessity of further proof. I think for this reason alone, the proceeding before the commission was void, unconstitutional, and was violative of the very rules promulgated by the commission itself. Judge Haymond authorizes me to say that he joins in this dissent.